YULISTIANI BESU AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1076/2025

[2025] HKCFI 4872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1076 of 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

1.  Leave to apply for Judicial Review be refused; and

2.  Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

Observations for the Applicants:

THE APPLICATION

1.  The relationship of the 1^st and the 2^nd applicants are mother (the mother) and son (the son), aged one and a half years old. The mother is his guardian ad litem and her facts in support of her claim form the son’s factual basis for his claim.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 29 April 2025 of the Torture Claims Appeal Board (“the Board’s Decision”).

3.  The applicants did not ask for a hearing. The Court is obliged to deal with their application without a hearing. See Order 53, rule 3(3) of the Rules of the High Court (“the RHC”).

4.  The applicants were not legally represented before the Board. The Board had written a letter and referred them to seek legal aid from the Director of Legal Aid (“DLA”), which had considered their case and refused to provide them with legal representation.

5.  Having considered the Board’s Decision, this Court is of the view that the son’s case had been fully canvassed before the Board, which had applied advanced standards of fairness to their case. The mother had also submitted to the Board her concerns of the son if they were returned to Indonesia. The Board had further taken into consideration that if the son returned to his father’s country, Pakistan. Since DLA had considered the applicants’ case and refused their application, it will be unlikely that DLA will agree to provide them with legal representation for the Court’s hearing. Therefore, the Court decides to proceed to consider their application without referring the mother to seek legal representation from the DLA.

6.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicants

7.  The mother is a national of Indonesia. The father of the son is a Pakistani, who is in jail custody and is making his own non-refoulement claim separately. The son may go to Pakistan with his father, if refouled. His father had also asserted that he would return to Pakistan with his son. The Board had taken into consideration of this factor in the Board’s Decision.

8.  The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by the mother’s husband because she did not remit money to him and she had an affair with the son’s father in Hong Kong and the son was born out of wedlock. Her husband had threatened to kill her and her son if they return to Indonesia.

9.  Details of the facts are set out in the Board’s Decision. See hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001076_2025_files/the_Board's_Decision.pdf

The Director’s Decision

10.  The Director considered the applicants’ claims in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

11.  By way of Notice of Decision dated 21 January 2025 (“the Director’s Decision”), the Director assessed the applicants’ claim jointly on all applicable grounds and dismissed their claims because their claims are unsubstantiated.

The Board’s Decision

12.  The applicants appealed the Director’s Decision to the Board. On 1 April 2025, the Board conducted an oral hearing for their appeal. The mother had given oral evidence and answered the Board’s questions.

13.  The Board had taken on board the Court of Appeal’s decisions in Fabio Timogan & Others v Ruth [2020] HKCA 971. Having considered the evidence, the Board found the facts below.

As to the mother

(1)  She had never reported her domestic violence case to police in Indonesia. [53]

(2)  She told the Board that she believed that the Indonesian police would protect her and her son upon her return to Indonesia with her son. [53]

(3)  There was no evidence that her husband would take concrete action to harm or kill her. [130]

As to the son

(4)  He had never been to Indonesia or Pakistan since birth. He is healthy since birth and no medical treatment was required. His mother taught him English and Indonesian. The mother alleged that he would be discriminated by the neighbours who are conservative Muslims. She further said that he would be harmed or killed by her husband. She said that if he returned to Pakistan with his father, he would be harmed or killed by PML(N) supporters for political reasons or the extremist Muslims who exercised ‘ honour killing’ in Pakistan because he was born out of wedlock. [73]

(5)  According to the country of origin information (“COI”), the Indonesian government will provide protection to the citizens, including women and children.[88]

(6)  There was no evidence that her husband would take concrete action to harm or kill the son. [130]

(7)  If the son returns to Pakistan with his father, the Pakistani police would protect him as they would do so to every Pakistani citizen regardless of their political affiliation. [170]

(8)  There was no evidence that the son would face a separate persecution risk independently arising from his mother’s case or his father’s case. He was born in Hong Kong and has never been to Indonesia or Pakistan. There is no evidence that illegitimate children in Indonesia or Pakistan would suffer from societal discrimination. [173]

(9)  Reasonable state protection from Indonesia and Pakistan will be provided to the son. [185]

(10)  The son will not be stateless if he goes with his mother to Indonesia or with his father to Pakistan. [212]-[217]

As to the mother and the son

(11)  State protection is available to the mother and the son in Indonesia. Internal relocation to Jakarta is viable. [130] & [136]

14.  It therefore dismissed their appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

15.  The applicants filed Form 86 on 8 May 2025 for leave to apply for judicial review of the Board’s Decision. The applicants did not put forth any valid ground in support of their application.

16.  In the mother’s affirmation in support of their application, she has raised the grounds below to challenge the Board’s Decision.

(1)  The Board’s Decision is wrong.

(2)  It had not considered BOR 2.

(3)  It had relied too much on the country of origin information without considering their personal background and experience.

(4)  It relied on some web news which is not officially recognized by the authorities and there was no proper investigation into their claims.

DISCUSSION

17.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19.  The grounds under paragraph 16 are bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision.

20.  It is obvious that the Board had exercised advanced standards of fairness to this case. It had referred their case to DLA for legal representation. DLA had considered the case and refused to provide them with legal representation. The Board had considered the son’s case separately, taking into consideration if he goes with his mother to Indonesia or with his father in Pakistan, concluding that he will be free of any risk under either of the situations.

21.  The Court considers that there is no other issue specific to the son that was not put to the Board for consideration because of lack of legal representation for him.

22.  The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

23.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

24.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the son’s application a nullity.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1